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TMI Blog2021 (3) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... t was held that In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well. In view of the elucidation of law by the Hon ble Supreme Court in the case of Mandvi Co-op. Bank Ltd., it is clear that, an accused in a proceedings under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Court. The respondent No.4 (accused No.3) filed an Affidavit of Evidence in lieu of Examination-in-Chief dated 5th March 2019. To the said affidavit accused also annexed certain documents. The petitioner therefore filed an application on 1st April 2019 for discarding evidence of accused and for directing the respondent No.3 to lead oral evidence. The Trial Court by its cryptic impugned Order dated 1st April 2019, rejected it. The impugned Order reads as Rejected as per latest Judgment of Gujrat H.C. and of Hon ble S.C. in I.B.A. Case . The Trial Court also directed and granted 7 days time to the petitioner to challenge its Order or else it would pass no cross Order. 5. The question, whether an accused in proceedings under Section 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness against himself under Article 20(3) of the Constitution of India.... Then in paragraph 31 of the judgment it observed: .... Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code..... I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code. 31. On this issue, we are afraid that the High Court overreached itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution stand or fall on its own evidence. In case the defence does lead any evidence, the nature of its evidence may not be necessarily documentary; in all likelihood the defence would lead other kinds of evidences to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. This is the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque. It is, therefore, wrong to equate the defence evidence with the complainant's evidence and to extend the same option to the accused as well. 6. The Hon ble Supreme Court in the case of Indian Banks Association Ors. Vs. Union of India Ors., reported in MANU/SC/0387/2014 : AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case and, if such an application is made, Court may pass appropriate orders at the earliest. 4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination. 5) The Court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Bank Association Ors. (supra) by the Hon ble Supreme Court permits accused person to file an affidavit. By relying on last sentence in para No.5 i.e. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court , he submitted that, the said observation of the Hon ble Supreme Court is expansive in nature and also permits accused person to file an affidavit-of evidence in lieu of examination-in-chief. The said argument cannot be accepted at its threshold, as it is contrary to the law laid down by the Hon ble Supreme Court in the case of Mandvi Co-op. Bank Ltd. (supra). It is made abundantly clear therein by the Hon ble Supreme Court that, it is therefore wrong t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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